Citation Nr: 0203830
Decision Date: 04/25/02 Archive Date: 05/02/02
DOCKET NO. 99-18 941 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to an increased rating for angioneurotic edema,
currently evaluated as 40 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and her husband
ATTORNEY FOR THE BOARD
T. Mainelli, Associate Counsel
INTRODUCTION
The veteran had active service from August 1977 to August
1980.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from an April 1999 rating decision by the
Montgomery, Alabama Regional Office (RO) of the Department of
Veterans Affairs (VA). In that decision, the RO increased
the evaluation for angioneurotic edema from 20 percent to 40
percent effective to November 6, 1998, but denied any further
increase.
FINDING OF FACT
The veteran is in receipt of a 40 percent rating for
angioneurotic edema and there is no evidence of an unusual or
exceptional disability picture.
CONCLUSION OF LAW
An evaluation in excess of 40 percent for angioneurotic edema
is not warranted. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§§ 3.321(b)(1), 4.104, Diagnostic Code 7118 (2001); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS AND BASES FOR FINDING AND CONCLUSION
Initially, the Board notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act (VCAA) of 2000. In pertinent part,
this law redefines VA's notice and duty to assist
requirements. See 38 U.S.C. §§ 5102, 5103, 5103A, and 5107
(West Supp. 2001). The RO has enacted regulations to
implement the provisions of the VCAA. 66 Fed. Reg. 45620-
45632 (Aug. 29, 2001). These changes in law are potentially
applicable to the claim on appeal. See Karnas v. Derwinski,
1 Vet. App. 308 (1991).
Upon review of the record, the Board finds that VA has met
the duty to assist and notice requirements under the VCAA.
By virtue of a Statement of the Case (SOC) and a Supplemental
Statement of the Case (SSOC), the RO has advised the veteran
(and her representative) of the Reasons and Bases in denying
her claim. In this case, the veteran, her husband and her
co-workers have presented statements in support of her claim.
The veteran has also submitted treatment records from her
private physicians. The RO has obtained her VA outpatient
clinical records, and provided her VA examinations in January
1999 and June 2001. As the veteran is in receipt of the
maximum schedular evaluation for her angioneurotic edema, the
Board finds that no reasonable possibility exists that any
further assistance would aid in substantiating her claim.
The veteran claims entitlement to a rating in excess of 40
percent for her angioneurotic edema. According to her
statements and testimony of record, her disability primarily
involves recurrent episodes of swelling which begin in her
hands and migrate to most parts of her body. She describes
her swelled areas as hot, red and painful to touch. She
occasionally has episodes of syncope as well as tongue
swelling which obstructs her airway passage. She has
difficulty of use of affected parts, and requires bed rest
during exacerbations. She feels embarrassment to be seen in
public, and has submitted photographic evidence showing
involvement of her face and upper back areas. She testified
that, on average, her exacerbations occur every two weeks and
last up to several days in duration. These episodes are
unpredictable, but could be triggered by some amount of minor
physical trauma. She is unable to work during these
episodes, but has been able to maintain employment as a bus
monitor.
The veteran's husband testimony corroborates the veteran's
descriptions of her angioneurotic edema symptomatology. He
describes her swelling as involving large areas of her body.
He monitors her health status during exacerbations, and
indicates that she is unable to perform household chores
during these time periods. He does not take his wife to
social events as her physical disfigurement causes her
embarrassment. Statements from the veteran's co-workers also
corroborate her symptoms of body part swelling which look
painful and disfiguring.
The veteran's service medical records reflect treatment for
episodic swelling involving the neck, eyes, arms and face.
She was diagnosed with allergic dermatitis which was treated
with Benadryl and Prednisone. On VA Compensation and Pension
(C&P) examination in December 1993, the veteran reported
multiple episodes of migratory swelling that had been treated
with Benadryl and Prednisone. At that time, she was given a
diagnosis of chronic urticaria. A VA clinical record dated
that same month noted her history of intermittent episodes of
body swelling, sometimes triggered by light trauma, which
occurred approximately every 2 weeks. There was no evidence
of vascular problems at that time.
In a rating decision dated in March 1994, the RO granted
service connection for angioneurotic edema, and assigned an
initial 20 percent evaluation.
Thereafter, the veteran's private and VA clinical records
reflect her treatment for recurrent body swelling, diagnosed
as angioedema and urticaria, that reportedly lasted several
days in duration. Testing revealed that she was allergic to
dust, mite, horse, dog, wool and certain types of foods. Her
treatment regimen included allergy shots, Hismanal,
Prednisone, Ibuprofen and Benadryl. A November 1995 VA
anaphylactoid illness consultation indicated an assessment of
probable, idiopathic chronic angioedema with a recommendation
of non-sedative anti-histamine treatment.
By means of a VA Form 21-4138 filing received in November
1998, the veteran filed her current claim for an increased
rating for service connected angioneurotic edema. At that
time, she submitted medical records from Stringfellow
Memorial Hospital evidencing her inpatient treatment for
urticaria in August 1996. Her complaint included swelling
and hotness of the right hand, face, tongue and back with an
episode of syncope. Her areas of swelling were medically
described as "whelps." Her treatment included cold
compress and Benadryl.
On VA C&P examination in January 1999, the veteran reported
at least one episode of pruritis, swelling and urticaria
every one to two weeks. She had two emergency room visits in
the past year. She noted that past treatment was without
benefit, but that her frequent use of Atarax helped to abort
her angioneurotic attacks. However, she stated that her
Atarax use made her drowsy and interfered with her activities
as a bus monitor. Her physical examination was unremarkable.
However, the examiner provided the following impression:
Angioneurotic edema diagnosed while in
service, in 1978. [The veteran] had severe
flare-up post-operatively in 1988. Since
that time she has had fairly regular
exacerbations, numbering at least two per
month with two emergency room visits for
severe exacerbations. She is on regular
medication which she takes for frequent
flare-ups. The medication does interfere
with her employment and she has to moderate
the use of this while on the job. This has
become more debilitating and frequent with
regard to the attacks and she is asking for
further evaluation.
In a decision dated in April 1999, the RO increased the
evaluation for angioneurotic edema to a 40 percent rating
effective to November 6, 1998.
Thereafter, the veteran's private clinical records document 7
specific visits to treat angioneurotic edema between the time
period from August 1999 to December 2000. On VA C&P
examination in June 2001, she described progressively
worsening attacks of angioneurotic edema manifested by red,
warm, tender and painful areas of swelling which affected
different parts of her body, including her face, body, hands
and feet. Her episodes occurred once a week, and lasted as
long as three to four days in duration. During these
exacerbations, she stayed in bed as she felt weak and faint.
Generally, the symptoms began in her palms and lips and
spread rapidly to the areas of her tongue, face, hands and
other areas of her body. There were no particular provoking
conditions. Her current treatment with Benadryl was somewhat
effective. Her condition interfered with her ability to work
and perform household chores. She had missed five days of
work for the calendar year. Her physical examination was
unremarkable, but she submitted to the examiner photographs
of her condition during an exacerbation. She was given a
diagnosis of "Chronic recurrent angioneurotic edema, chronic
urticaria, etiology unestablished, incapacitating."
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A. §
1155 (West 1991); 38 C.F.R. § 4.1 (2001). Separate
diagnostic codes identify the various disabilities. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2001). A rating specialist must
interpret reports of examination in light of the whole
recorded history, reconciling the various reports into a
consistent picture to accurately represent the elements of
disability present. 38 C.F.R. § 4.2 (2001). As such, the
determination of whether an increased evaluation is warranted
is to be based on a review of the entire evidence of record
and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In its evaluation, the Board shall consider all information
and lay and medical evidence of record. When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Board shall give the benefit of the doubt to the
claimant. 38 U.S.C. § 5107(b) (West Supp. 2001). The Board
considers all the evidence of record, but only reports the
most probative evidence regarding the current degree of
impairment which consists of records generated in proximity
to and since the claims on appeal. See Francisco v. Brown,
7 Vet. App. 55 (1994).
The new regulatory provisions promulgated by VA includes the
following definitions of the competency of evidence:
"(1) Competent medical evidence means
evidence provided by a person who is
qualified through education, training, or
experience to offer medical diagnoses,
statements, or opinions. Competent medical
evidence may also mean statements conveying
sound medical principles found in medical
treatises. It would also include statements
contained in authoritative writings such as
medical and scientific articles and research
reports or analyses.
(2) Competent lay evidence means any
evidence not requiring that the proponent
have specialized education, training, or
experience. Lay evidence is competent if it
is provided by a person who has knowledge of
facts or circumstances and conveys matters
that can be observed and described by a lay
person."
66 Fed. Reg. 45620-45632 (Aug. 29, 2001) (to be codified at
38 C.F.R. §3.159)).
The severity of a disability is ascertained, for VA rating
purposes, by application of the criteria set forth in VA's
Schedule for Rating Disabilities at 38 C.F.R. Part 4
(Schedule). The currently assigned 40 percent rating
contemplates angioneurotic edema attacks without laryngeal
involvement lasting one to seven days or longer and occurring
more than eight times per year, or; attacks with laryngeal
involvement of any duration occurring more than twice a year.
38 C.F.R. § 4.104, Diagnostic Code 7118 (2001). This is the
maximum allowable schedular rating for this disability. As
such, any claim for a higher schedular evaluation must be
denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App.
426, 430 (1994).
Nonetheless, the Board is still required to consider whether
to refer the veteran's claim to the Director of Compensation
and Pension Service for extra-schedular consideration under
the provisions of 38 C.F.R. § 3.321(b). See Moyer v.
Derwinski, 2 Vet. App. 289 (1992) (VA must consider the
provisions of 38 C.F.R. § 3.321(b) when a claimant is in
receipt of the maximum schedular evaluation). The provisions
of 38 C.F.R. § 3.321(b) states as follows:
Ratings shall be based as far as
practicable, upon the average impairments of
earning capacity with the additional proviso
that the Secretary shall from time to time
readjust this schedule of ratings in
accordance with experience. To accord
justice, therefore, to the exceptional case
where the schedular evaluations are found to
be inadequate, the Under Secretary for
Benefits or the Director, Compensation and
Pension Service, upon field station
submission, is authorized to approve on the
basis of the criteria set forth in this
paragraph an extra-schedular evaluation
commensurate with the average earning
capacity impairment due exclusively to the
service-connected disability or
disabilities. The governing norm in these
exceptional cases is: A finding that the
case presents such an exceptional or unusual
disability picture with such related factors
as marked interference with employment or
frequent periods of hospitalization as to
render impractical the application of the
regular schedular standards.
The Board is precluded by regulation from assigning an
extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the
first instance. However, the Board is not precluded from
raising this question, see Floyd v. Brown, 9 Vet. App. 88
(1996), and addressing referral where circumstances are
presented which the Director of VA's Compensation and Pension
Service might consider exceptional or unusual. Shipwash v.
Brown, 8 Vet. App. 218, 227 (1995).
The evidence in this case clearly establishes that the
veteran experiences frequent, severe attacks of angioneurotic
edema which migrates to different parts of her body. Her
condition has been characterized as painful and physically
disfiguring at times. The Board accepts as credible her
report of frequency of episodes between once a week or once
every two weeks, and lasting as long as three to four days in
duration. Her records show 7 clinic visits during the time
period from August 1999 to December 2000 with additional
report of two emergency room visits. She missed five days of
work over a 6 month period for the year 2001.
Based upon a review of the evidence, the Board fails to
ascertain any interference with the veteran's employment
which is not contemplated by the regular schedular criteria.
Under VA's Schedule, the degrees of disability specified are
considered adequate to compensate for considerable loss of
working time from exacerbations or illnesses proportionate to
the severity of the several grades of disability. 38 C.F.R.
§ 4.1 (2001). From the veteran's testimony and statements of
record, the Board presumes that the veteran misses work at
least 2 business weeks per year as a result of her
angioneurotic edema. She also requires some use of leave for
clinical visits. The Board finds that her level of loss of
working time is proportionate to the loss of working time
reflected by her 40 percent disability rating under
Diagnostic Code 7118. In fact, the criteria for a 40 percent
disability rating under Diagnostic Code 7118 contemplates
angioneurotic attacks which last longer in duration. Thus,
the Board does not find any "marked" interference with the
veteran's employment not contemplated by the regular
schedular criteria. As such, there is no basis for further
action on this question. VAOPGCPREC 6-96 (1996).
ORDER
An evaluation in excess of 40 percent for angioneurotic edema
is denied.
C.W. Symanski
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.